Genet v. Appel

Appellate Division of the Supreme Court of New York

Genet v. Appel

118 A.D.3d 519, 987 N.Y.S.2d 150

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 12, 2014

StatusPublished

Cited by1 cases

This text of 118 A.D.3d 519 (Genet v. Appel) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Genet v. Appel, 118 A.D.3d 519, 987 N.Y.S.2d 150 (N.Y. Ct. App. 2014).

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Opinion

Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered May 1, 2013, upon a jury verdict, in favor of defendant, and bringing up for review an order, same court and Justice, entered April 19, 2013, which denied plaintiffs’ motion pursuant to CPLR 4404 (a) to set aside the jury verdict, unanimously affirmed, without costs.

Plaintiffs contend that the jury verdict in this medical malpractice action should be overturned on the basis that the trial court committed fundamental error by failing to charge Education Law § 6530 (32), which requires a physician to maintain proper records of his treatment and oral instructions to his patients. However, plaintiff failed to request such charge or to object to the charge that was given at trial, and thus failed to preserve the issue for appellate review (Schaefer v New York City Tr. Auth., 96 AD3d 485 [1st Dept 2012]; Kroupova v Hill, 242 AD2d 218 [1st Dept 1997], lv dismissed and denied 92 NY2d 1013 [1998]; see also CPLR 4110-b). The trial court’s omission of such a charge was not a “fundamental” error that might warrant review in the interests of justice (cf. Peguero v 601 Realty Corp., 58 AD3d 556, 563 [1st Dept 2009]).

We have considered plaintiffs’ remaining contentions and find them unavailing.

Concur — Acosta, J.P., DeGrasse, Richter, Manzanet-Daniels and Feinman, JJ.

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Judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered May 1, 2013, upon a jury verdict, in favor of defendant, and bringing up for review an order, same court and Justice, entered April 19, 2013, which denied plaintiffs’ motion pursuant to CPLR 4404 (a) to set aside the jury verdict, unanimously affirmed, without costs.

Plaintiffs contend that the jury verdict in this medical malpractice action should be overturned on the basis that the trial court committed fundamental error by failing to charge Education Law § 6530 (32), which requires a physician to maintain proper records of his treatment and oral instructions to his patients. However, plaintiff failed to request such charge or to object to the charge that was given at trial, and thus failed to preserve the issue for appellate review (Schaefer v New York City Tr. Auth., 96 AD3d 485 [1st Dept 2012]; Kroupova v Hill, 242 AD2d 218 [1st Dept 1997], lv dismissed and denied 92 NY2d 1013 [1998]; see also CPLR 4110-b). The trial court’s omission of such a charge was not a “fundamental” error that might warrant review in the interests of justice (cf. Peguero v 601 Realty Corp., 58 AD3d 556, 563 [1st Dept 2009]).

We have considered plaintiffs’ remaining contentions and find them unavailing.

Concur — Acosta, J.P., DeGrasse, Richter, Manzanet-Daniels and Feinman, JJ.

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Bluebook (online)

118 A.D.3d 519, 987 N.Y.S.2d 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/genet-v-appel-nyappdiv-2014.

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